Posted
by
samzenpuson Wednesday July 29, 2009 @07:55PM
from the patent-for-obtaining-patents dept.

Chris Albrecht writes "VoloMedia announced today that it has been awarded what it called the 'patent for podcasting.' According to the press announcement, patent number 7,568,213, titled 'Method for Providing Episodic Media,' covers:
'...the fundamental mechanisms of podcasting, including providing consumer subscription to a show, automatically downloading media to a computer, prioritizing downloads, providing users with status indication, deleting episodes, and synchronizing episodes to a portable media device.'"

"VoloMedia, which used be called Podbridge, filed for this particular patent in November 2003 â" a time, Navar said, before it was obvious that people would download episodic content such as podcasts."

Of course, it's crap. I had an ftp server where I created a 'digital diary' once a week for the first 6 months of my sons life, and that was in 1998.Granted, they where only 2-3 minutes and linked to my 'web diary', but they where down loadable every week.

Having a couple of friends working as journalists for a "newspaper" for the blind (it is a real newspaper but its odd calling it that due it it not having a real paper copy at all) have done these so called pod casts since the "dawning of computer time." On normal Compact Cassettes.

The CC have been known to be played not only for the direct audience but also as a convenience for the people on the go.... also all those language courses on tape spring to mind...

Did the Hoover company invent the vacuum cleaner? No, they didn't. They popularised it. Did Kleenex invent paper tissues? No, they didn't. They popularised them. Likewise, Apple didn't invent the digital media player which could download content from the net - but they popularised it.

The question was where people get the idea that Apple invented podcasting.

GP's answer -- "the name" -- is the correct answer. That is where people get the idea. In fact the answer is so obvious that the quesiton was foolish. (To be fair, the question was almost certainly rhetorical; that doesn't make it any less foolish. GGP could've spoken more effectively by simply saying 'Apple did not invent podcasting', as others have.)

And yet people jump on GP with all the reasons that the name is not an indicator

We don't care who invented podcasting. We just are pointing out that it is incredibly obvious that Apple supported it before 2008 (even if they didn't invent it). So we all wonder how this patent could realistically apply.

"VoloMedia, which used be called Podbridge, filed for this particular patent in November 200

"CROSS-REFERENCE TO RELATED APPLICATIONS

The present application is a continuation and claims the priority benefit of U.S. patent application Ser. No. 10/717,183 filed Nov. 19, 2003 and entitled "Personalized Episodic Download Media Service," the disclosure of which is incorporated herein by reference. The present application is related to U.S. patent application Ser. No. 10/717,176 filed N

Of course, all the elements were in place before November 2003 [wikipedia.org]. Notably absente from the patent is any reference to prior art by Kevin Marks or Dave Winer. Marks' RSS2iPod script, for example, was released in October of that year.

The only claim that post-dates November 2003 that I can see is that clients (along with things like intelligent cache management) have since been implemented directly on non-PC portable devices. Most sane people would consider that obvious: as portable devices get more powerful,

Bloody hell, what is the real difference between a VCR/tape recorder and a computer podcast? None that really matters, except the media has been digitised for storage. I guess all sorts of crap will endf up being patented at this rate. Perhaps a digital method for excreting modified proteins? (Having a crap (all in "digital" pieces).

The USPTO obviously pays peanuts, because their decisions are definitely made by monkee's.

Its related to an application from November 2003. So unless there's a problem with their priority claim - for anything to qualify as prior art it would have to be before November 2003 (and before November 2002 to be really dangerous to the patent at all).

According to the history of podcasting [wikipedia.org] article on wikipedia the system of using RSS for podcasts and the ability to get them onto an iPod was mature and in use by the time this patent was filed, so it would appear that prior art will indeed shut any efforts from VoloMedia to get money from this patent down.

I'm kinda feeling lazy right now, but with a fair amount of patent experience under my belt, I'd say the key limitations of '213 Carhart et al. are in bold below:

A method for providing episodic media, the method comprising: providing a user with access to a channel dedicated to episodic media, wherein the episodic media provided over the channel is pre-defined into one or more episodes by a remote publisher of the episodic media; receiving a subscription request to the channel dedicated to the episodic media from the user; automatically downloading updated episodic media associated with the channel dedicated to the episodic media to a computing device associated with the user in accordance with the subscription request upon availability of the updated episodic media, the automatic download occurring without further user interaction; and providing the user with: an indication of a maximum available channel depth, the channel depth indicating a size of episodic media yet to be downloaded from the channel and size of episodic media already downloaded from the channel, the channel depth being specified in playtime or storage resources, and the ability to modify the channel depth by deleting selected episodic media content, thereby overriding the previously configured channel depth.

Finding the old podcast applications and checking for that particular feature takes a bit of work. If anyone happens to have an old version of AmphetaDesk [wikipedia.org] or Radio UserLand [wikipedia.org], perhaps they include a feature that would read on indicating channel depth. Remember, the prior art needs either to disclose each and every limitation of the claimed invention, or be combined with additional prior art that fills in the missing pieces, along with a motivating rational for combining the art.

If there is prior art that is slightly different, but the changes are something that are pretty simple, wouldn't that meet the obviousness criteria?

It depends. If the difference is insignificant (e.g., inventor claims a blue button and the prior art indicates a red button, where the color of the button is arbitrary to the invention at hand), then no secondary art needs to be found to teach the insignificant feature. I'm guessing, however, that pretty simple refers to the ease of implementation. Remember that hindsight may not be relied upon. It is easy to add file sizes and track length to an RSS feed, but that has nothing to do with obviousness. To present a case for obviousness (if the bold limitations in my GP post are the ones missing), an ordinary person skilled in the art at the time the invention was made would have needed to combine the channel depth (file size and track length) concept with the podcasting idea. If some reference A about podcasting teaches all the limitations of the claim except for the channel depth, and reference B teaches channel depth in a similar application, and motivation for adding the channel depth can be found, then, and only then, is it an obvious limitation.

Let's see... I present some media for someone to download. How is it in any way NOT obvious to include some statistics on the media in order for the user to be informed? File sizes have been presented with downloads since the dawn of networking. Including extra metadata is a trivial progression.

So that no one is confused, the key limitations probably are in bold. I have not searched this patent, nor have I looked at the prosecution history. I further am not a registered patent attorney or agent. User takes all risk. Void where prohibited. Batteries not included?

And what do subpoena have to do with anything here? Everything that's needed is public.

Discovery can to more than just collect evidence. It can also:put the fear of God into their legal team,force their legal team to hire more staff and pay overtime to make photocopies/scans,disrupt the smaller company's day-to-day business with busy-work,force them to provide more rope with which to hang them.

In this case, the important feature is the channel depth stuff recited in the independent claim. Are any of the podcasting experts out there familiar with this limitation and how it relates to the prior art?

1. A method for providing episodic media, the method comprising: providing a user with access to a channel dedicated to episodic media, wherein the episodic media provided over the channel is pre-defined into one or more episodes by a remote publisher of the episodic media; receiving a subscription request to the channel dedicated to the episodic media from the user; automatically downloading updated episodic media associated with the channel dedicated to the episodic media to a computing device associated

providing the user with: an indication of a maximum available channel depth, the channel depth indicating a size of episodic media yet to be downloaded from the channel and size of episodic media already downloaded from the channel, the channel depth being specified in playtime or storage resources, and the ability to modify the channel depth by deleting selected episodic media content, thereby overriding the previously configured channel depth.

the channel depth indicating a size of episodic media yet to be downloaded from the channel and size of episodic media already downloaded from the channel, the channel depth being specified in playtime or storage resources, and the ability to modify the channel depth by deleting selected episodic media content, thereby overriding the previously configured channel depth.

Plenty of FTP clients available at the time showed a listing of the files in the current directory of the currently connected server server, with their size, on the left hand side of the screen, and a listing of the files in the currently selected directory on the client with their size on the right hand side of the screen. They also provided means of deleting files on the client (and if authorised on the server) and of selecting which files on the server to download.

I would also note that class 725, the class in which this patent was issued from typically has the lowest patent allowance rate in the office. They typically battle it out with class 705 (business methods) for lowest allowance rate.

As a matter of fact it is a submarine. It was filed Nov 2003 but not completed until Nov 2008 when Apple entered the stage.However there is prior art dating back to circa 2000. So it is also a bad USPTO decision. But there are others [uspto.gov]

No I'm confused - what the hell has the iPhone got to do with it? Podcasting got it's "name" from the old "Click Wheel" iPod - right? And I thought using RSS with enclosures to deliver audio (and later video) actually came to the iPod later and existed before. Wasn't it invented by Dave Winer and Adam Curry?

It means there's 3 full years of prior art. I mean heck, all the patent office needed to do was search Wikipedia for History of podcasting [wikipedia.org] to know that this patent was years too late to be valid. The concept was proposed in late 2000, and the first podcast on record dates all the way back to January of 2001. I'm not seeing anything there that shouldn't have been obvious to anyone who attended BloggerCon the week before the patent was filed....

Anyone who thinks the filing date is 2008 is immediately disqualified from discussing anything about the patent system until they've learned even the most basic items

PROTIP: only claims identical to those filed in 2003 gets the "priority date". Any novel claims not included in the 2003 patent can be countered with prior art dated before 2007. This is how the continuation system has always worked in order to prevent people from filing for "method of fellating a whale" and getting their patent rejected over

Didn't RTFA, but podcasting became popular as two things emerged in a large population:

greater bandwiïdth

cheap digital storage

When you don't have the means to distribute "large" media, nor the means to easily consume that media, then there is no place for podcasting. Once you have those means, however, "providing consumer subscription to a show, automatically downloading media to a computer, prioritizing downloads, providing users with status indication, deleting episodes, and synchronizing episodes to a portable media device" are all just obvious extensions to how people will obtain their media.

for making me click through to get to the actual patent. Anyway, from reading some of the patent, it looks like they were trying to patent something at least somewhat interesting and unique. However, claim 1--the only independent claim--pretty clearly covers iTunes, among other prior art. I am not sure if it was bad drafting or bad intent, but I would not bring this to Apple's attention if I were the company. I've read some patent applications were the value added was miniscule, and the only way to see it is to look at some of the prosecution history. Maybe that's the case here, but I am too lazy to dig through the history. With a filing date of 2003, I doubt this will survive much scrutiny. That sucks if this company was trying to do something interesting. That's great if they are trolling.

Yeah, you'd think that being told EVERY SINGLE TIME a patent story is put on/. that the only thing that matters is the claims, the loser "editors" here would stop repeating statements from a press release or the patent abstract and falsely claiming that they describe what is patented./. editors are either ignorant of the most basic facts about the American patent system, or wilful liars.

Patent Schmatent. Apple already has just invented something that IMPROVES upon that. It's called the podcast. It's also capable providing meta data to an online store and supports multiple channels. This version works on iPods too!

the other 194 countries who do not recognize US patents its probably a good thing, nothing like a government eliminating its own companies from the worlds competition.

iam more interested in the patenting "end game" in the US, with every year as more of their IP gets locked up it will come to a point where its just not possible to do business at all in the US without infringing a patent or 3 and so simply it will be better and more profitable for companies to do business and innovate outside of the USAleaving the US sitting in court with its millions of lawyers jerking each other off while the ROTW just gets on with business as usual, what exactly is the end game ? and what happens when you get there ?

what i do know is 3 billion Chinese and 1.4 billion Indians not to mention Europe should take up the slack quite nicely in the future (hint: they already are, seen your universities students country of origin makeup recently? they are taking all that knowledge right back to their own countries).

the other 194 countries who do not recognize US patents its probably a good thing, nothing like a government eliminating its own companies from the worlds competition.

You do realize that those other countries have their own patent laws, don't you? And a clever U.S. inventor can even file patent applications in the foreign countries that matter. In fact, we have a treaty (called the Patent Cooperation Treaty) that lets you file a single application that you can then send out to different countries within a couple of years. If I want to shut down competition in Europe, I'll file in Europe.

iirc, you can get a software patent in Europe, it just won't be enforced. something about US Software Companies hammering the EU Commission for software patents. They won't take no for an answer, they continue to push for them. But they also want to make sure they get their patent so when the day comes, they will have something to enforce.

The european parliament rejected software patents with a vote of 648 to 15 http://www.theregister.co.uk/2005/07/06/eu_bins_swpat/ [theregister.co.uk]. Yes, the EPTO has been lobbied into (illegally, I would say, but then IANAL) granting software patents, but then you can't enforce them.

The end game is in full swing. Many US factories have relocated to China and elsewhere years ago and the US Dollar keeps devaluing. Pretty soon, Indian and Chinese high tech companies will outsource their support call centres to the USA.

it will take several lawsuits costing millions before the patent is examined. And I doubt if there anything non-obvious here. Say, didn't the USPTO review their guidelines with respect to KSR and Bilski?

Not necessarily. If you have prior art documents that would invalidate one or more of the claims, then you are more than welcome to file an ex parte reexamination request. That costs well less than millions of dollars.

And yes, the MPEP has been revised in light of KSR. On the other hand, Bilski is still up in the air because the Supreme Court is going to hear it next year. Believe me, there are a lot of us who want the Bilski dust to settle.

I've always found it sadly hypocritical that/. geeks who have so little patience with people making mistakes on technical issues, when said mistakes can easily be corrected by a little bit of reading, are comfortable making similarly blatantly wrong statements about the US Patent system, when said mistakes can easily be corrected my reading the freely available Manual of Patent Examination Procedure. I mean, seriously, nobody should spout opinions about patentability unless they've read MPEP 2100 through at least once. It's like trying to argue vi vs. emacs when the only text editor you've ever used is Notepad.

I've always found it sadly hypocritical that/. geeks who have so little patience with people making mistakes on technical issues, when said mistakes can easily be corrected by a little bit of reading, are comfortable making similarly blatantly wrong statements about the US Patent system, when said mistakes can easily be corrected my reading the freely available Manual of Patent Examination Procedure.

Thing is, the "blatantly wrong" statements about the US Patent system appear to predict its behavior better

The RSS Enclosure element was added in 2001 and was used by Radiobloggers.

Just because they didn't call themselves podcasters, doesn't disqualify it as prior art.

It's a pretty obvious desire to copy Audio to a portable device, just like it's an obvious desire to copy Ebooks, Electronic newsletters, Newsgroup postings, or E-mail messages to a mobile device for consumption.

And the method in which Podcast clients were designed to work is pretty obvious, once you define the need: Newsread

If that is the case, it covering all "episodic media", then prior art goes back to 1994 with "TimeOut Sports Technologies" (who are now bankrupt). They had sports pool software that updated all player data for hockey, football, basketball and baseball which was downloaded by the customer every week using the DataPac network.

1. A method for providing episodic media, the method comprising: providing a user with access to a channel dedicated to episodic media, wherein the episodic media provided over the channel is pre-defined into one or more episodes by a remote publisher of the episodic media; receiving a subscription request to the channel dedicated to the episodic media from the user; automatically downloading updated episodic media associated with the channel dedicated to the episodic media to a computing device associated

There are hundreds of examples of prior art, but AvantGo in particular, is a company whose entire business was essentially 'podcasting'.

We should all remember that when 'podcasting' became a 'thing', the big criticism of the term was that it pretended to be something new, and credited Apple with something that others had been doing for some time.

"machine-or-transformation test is a test of patent eligibility under which a claim to a process qualifies to be considered for patenting only if it :
(1) is implemented with a particular machine, that is, one specifically devised and adapted to carry out the process in a way that is not concededly conventional and is not trivial; or else
(2) transforms an article from one thing or state to another."

This test dates back to the 19th century, which leads me to believe the USPTO is more than willing to grant as many patent applications as are submitted regardless of merit. Why would they do that? To collect the fees. The USPTO only gains by granting even the most trivial patents.

IMO, if I were VoloMedia I'd be pissed. In addition to the cost involved in getting this ridiculous patent they will need to spend even more when it is challenged... and retracted.

The problem with your suggestion is that, in the grand scheme of things, it's a purely arbitrary distinction. Machines engage in processes to manipulate matter; software engages in processes to manipulate data.

What needs to be done to fix the patent system is to increase the burden of originality and non-obviousness. Just as patents should not be awarded for obvious machines, patents should not be awarded for obvious software; intricate and original machines as well as intricate and original software should

The class which examined this patent is class 725, Interactive Video Distribution. While the claims themselves don't explicitly state they are in a CATV environment, the claims are limited by what is disclosed in the specification.

I believe that Adam Curry, (former MTV video jockey) [who incidentally registered the MTV.com domain very early on] played a large part in early podcasting, even as far as coining or spreading the adoption of the term, and lending his hand at coding early pre-iTunes aggregators, until passing the ball to more competent coders, and also having a part in persuading Apple to adopt it into iTunes functionality.

From a quick glance at the history of podcasting [wikipedia.org], it looks like Curry was an early podcaster, but not the actually originator of the habit. In any event, it looks like a patent application filed in 2003 loses.

http://digitalcontentproducer.com/news/video_classic_tv_shows/ (article written in 2002, one year prior to the filed patent).

[quote]The new channel, which has already launched, and will update daily with fresh episodes of more than five classic television shows including Dragnet, Andy Griffith, Beverly Hillbillies, Dick Van Dyke and One Step Beyond. New episodes of each show will rotate daily.

With this new service, fans of classic TV shows can now watch their favorite episodes on their PDA's - delivered daily to enjoy anytime, anywhere. Each weekday, subscribers will receive a new show on the Pocket PC Films-TV channel. Once subscribed, fresh episodes will appear automatically every day when the user synchronizes their handheld device.[/quote]

The crux of the argument is actually invalid as patents are supposed to only be for things which are non-obvious to someone reasonably skilled in the art; which clearly fails in this case if someone were to look at it closely.

not only is there prior art, but if someone in 2003 were tasked with periodically distributing an audio file from a feed possibly all the way to a portable player, I have a feeling they might just try something as simple as an XML feed an an Mp3 file first, and build support for it i

The only independent claim specifies "receiving a subscription request to the channel dedicated to the episodic media from the user; ".

This could be debated, but the way I read this is that the client sends a request to the server to subscribe. Of course podcasts are not subscription based (although the client software usually makes this illusion). Podcasts just check an RSS feed for new episodes. The server never has any clue about "subscriptions".

I'm not sure I understand your question. You seem to be saying that the existence of a commercially-available infringing product invalidates the patent. But if that were the case, patents would be worthless. To be patentable, your invention has to be new and non-obvious (yes, I know there's more than that, I'm simplifying; this is not legal advice and so forth). It doesn't matter if it infringes another patent, or if somebody else successfully builds your product while your patent is pending, or even if somebody improves on your invention and gets a patent on the improvement. In fact, from a patent-holder's perspective, there's nothing better than to come up with a really brilliant idea, file for a patent, and while it's pending, $MEGACORP makes an infringing product (intentionally or not), spruces it up, and creates a huge market for your invention. Hooray for solvent defendants!

If you want to kill this thing (and I'm not recommending you should---I don't personally care), the best way to do it is to find a document published anywhere in the world before November 2002 (1 year before they filed) that has all the elements of their claims. It doesn't matter what the abstract is, or what the title says, or what's in the specification, or even that the inventor calls it "the podcasting patent." All that matters is the claims. You find a reference that has each and every limitation in the claims, and those claims are dead. Nothing anybody has done since November 2003 matters to these claims, and anything between November 2002 and November 2003 will just provoke litigation over first-to-invent (which is fine for the lawyers, but not so good for anybody else). So I think it's premature to just assume these claims are invalid.

And before people start modding me troll, I'm not saying I'm a fan of patent trolls. I've defended several cases against patent trolls, and there's nothing more frustrating than having to fight a litigious plaintiff with a bad patent. I am saying that there's such a thing as a valid patent (despite what many Slashdotters would like to believe), and even such a thing as a valid computer-related patent, and if you're lucky enough to have one and win a case against a solvent defendant, it's a great day. I don't call "troll" until I've thoroughly reviewed the claims, the allegedly-infringing product, the specification, and the prior art. And nobody has hired me to do that, so I probably won't, because it takes a long time.

If people read the claims or looked on public PAIR, they would probably understand why the case was allowed (the Examiner's Ammendment probably has something to do with it). Given that no one actually reads that stuff here on Slashdot, it is no surprise that people come to erronous conclusions.

If you want to kill this thing (and I'm not recommending you should---I don't personally care), the best way to do it is to find a document published anywhere in the world before November 2002 (1 year before they filed) that has all the elements of their claims. It doesn't matter what the abstract is, or what the title says, or what's in the specification, or even that the inventor calls it "the podcasting patent." All that matters is the claims.

That is the way the patent system technocracy shields itself, talking with patent professionals is like dealing with marxists. They have their own definition and standards of what constitutes "obviousness". And guess what, it has nothing to do with "common sense".

If you want to kill this thing... the best way to do it is to find a document published anywhere in the world before November 2002

They have their own definition and standards of what constitutes "obviousness".

Wait wait wait, are you saying you don't? Are you saying you hold some sort of universal understanding of the word obvious? Of course it's a question of definition, but (un)fortunately their decision. Don't get me wrong though, I do agree with you that the patent system is fucking ridiculous and that patents, especially in the tech sector, seem to be given to anybody who writes it down on their wishlist for Santa.

receiving a subscription request to the channel dedicated to the episodic media from the user

RSS feeds do not manage subscriptions, they do not receive subscription requests. The act of "subscribing" is no more than the end user having a program that automatically rechecks an XML file that exists somewhere in cyberspace. The USER has to subscribe, the podcaster does not receive any sort of subscription request, they simply host the files.
This patent seems like a closed system, where prop

None of the prior art listed addresses: providing the user with: an indication of a maximum available channel depth, the channel depth indicating a size of episodic media yet to be downloaded from the channel and size of episodic media already downloaded from the channel, the channel depth being specified in playtime or storage resources, and the ability to modify the channel depth by deleting selected episodic media content, thereby overriding the previously configured channel depth.